Madras High Court
C.David vs The Principal Secretary / Commissioner on 3 January, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.01.2014 CORAM THE HONOURABLE MR. JUSTICE R.SUBBIAH Writ Petition Nos.31074 to 31076 of 2013 and M.P.Nos.1 and 2 of 2013 W.P.No.31074 of 2013: C.David ... Petitioner vs. 1.The Principal Secretary / Commissioner, Department of Art & Culture, 2nd Floor, Tamilnadu Development Complex, Halls Road, Egmore, Chennai-8. 2.Veena E.Gayathri, Principal & Honorary Director, Tamilnadu Government Music College, Dr. D.G.S.Dinakaran Salai, Chennai-28. 3.K.Thyagarajan ... Respondents W.P.No.31075 of 2013: A.Arumugam ... Petitioner vs. 1.The Principal Secretary / Commissioner, Department of Art & Culture, 2nd Floor, Tamilnadu Development Complex, Halls Road, Egmore, Chennai-8. 2.Veena E.Gayathri, Principal & Honorary Director, Tamilnadu Government Music College, Dr. D.G.S.Dinakaran Salai, Chennai-28. 3.Murugesan ... Respondents W.P.No.31076 of 2013: P.Ayyanar ... Petitioner vs. 1.The Principal Secretary / Commissioner, Department of Art & Culture, 2nd Floor, Tamilnadu Development Complex, Halls Road, Egmore, Chennai-8. 2.Veena E.Gayathri, Principal & Honorary Director, Tamilnadu Government Music College, Dr. D.G.S.Dinakaran Salai, Chennai-28. ... Respondents Writ petition No.31074 of 2013 has been filed under Article 226 of the Constitution of India, praying for a Writ of certiorari to call for the records from the first respondent relating to the proceedings dated 12.11.2013 bearing reference Execution Order No. 4420/E1/2013 transferring the third respondent from Chennai to Madurai and in his place transferring the petitioner from Madurai Music College to Chennai and quash the same as the same is illegal, arbitrary, vindictive, mala fide and passed to accommodate the request of the third respondent. Writ petition No.31075 of 2013 has been filed under Article 226 of the Constitution of India, praying for a Writ of certiorari to call for the records from the first respondent relating to the proceedings dated 12.11.2013-3 bearing reference Execution Order No. 4420/E1/2013 transferring the petitioner from the Cuddalore District Government Music School to Erode District Government Music School and quash the same as the same is illegal, arbitrary, vindictive, mala fide and passed at the behest of the second respondent. Writ petition No.31076 of 2013 has been filed under Article 226 of the Constitution of India, praying for a Writ of certiorari to call for the records from the first respondent relating to the proceedings dated 12.11.2013 bearing reference Execution Order No. 4420/E1/2013-2 transferring the petitioner from the Sivagangai District Government Music School to Karur District Government Music School and quash the same as the same is illegal, arbitrary, vindictive, mala fide and passed at the behest of the second respondent. For Petitioner : Mr.N.G.R.Prasad, for Mr.S.Saravana Kumar, in all the writ petitions For Respondents : Mr.AL.Somayagee, Advocate General, assisted by Mr.V.Jayaprakash Narayanan, Spl. Govt. Pleader. COMMON ORDER
W.P.No.31074 of 2013 has been filed challenging the order of the first respondent dated 12.11.2013, transferring the third respondent from Chennai to Madurai and in his place transferring the petitioner from Madurai Music College to Chennai, as the same is illegal, arbitrary, vindictive, mala fide and passed to accommodate the request of the third respondent.
2. W.P.No.31075 of 2013 has been filed challenging the order of the first respondent dated 12.11.2013, transferring the petitioner from the Cuddalore District Government Music School to Erode District Government Music School, as the same is illegal, arbitrary, vindictive, mala fide and passed at the behest of the second respondent.
3. W.P.No.31076 of 2013 has been filed challenging the order of the first respondent dated 12.11.2013, transferring the petitioner from the Sivagangai District Government Music School to Karur District Government Music School, as the same is illegal, arbitrary, vindictive, mala fide and passed at the behest of the second respondent.
4. Since the issues involved in all the three writ petitions are inter-linked with each other, all these writ petitions are disposed of by way of a common order.
5. The case of the petitioner in W.P.No.31074 of 2013, in nutshell, is set out hereunder:-
(a) The petitioner joined as Mridangam Lecturer on 25.3.1994 under the first respondent. In the year 2007, when he was working in the Music College, Chennai, on 16.4.2007, he requested the first respondent to transfer him to Madurai as his family members are working there. On 27.4.2007, the third respondent requested for transfer from Madurai to Chennai. In view of the same, the first respondent, by proceedings dated 6.11.2007, transferred the petitioner from Chennai to Madurai and the third respondent was transferred from Madurai to Chennai on mutual grounds. Accordingly, both of them joined their respective places and working as such.
(b) The first respondent is the competent authority for appointment and transfer. All the Government Music Schools and Colleges are functioning under the control of the first respondent. The Tamil Nadu Government Music College, Chennai is one among the Music Colleges in Tamil Nadu. Each college / school has a Principal. The second respondent is one of the Principals. Even though the first respondent is the head of the department, only the second respondent decides as to who should be appointed and who should be transferred to different places. The second respondent created fear in the mind of the students, staff and the authorities that they would loose their position, if they act contrary to her dictates. Because of the attitude of the second respondent, there is a chaos in the Music Colleges in Tamil Nadu. Whenever the second respondent thinks, transfer orders are issued irrespective of the fact as to whether it is justified, accommodative or middle of the academic year.
(c) The second respondent wanted to accommodate the third respondent and to transfer him to Madurai. Hence, she made a request to the first respondent to transfer the third respondent to Madurai by letter dated 11.7.2013. Immediately, on 2.8.2013, a transfer order was issued by the first respondent transferring the third respondent to Madurai and transferring the petitioner from Madurai to Chennai. Since the said transfer is accommodative and the same was issued at the behest of respondents 2 and 3 and other grievances of the employees remain unresolved for a long period, the petitioner submitted a detailed representation on 7.8.2013 through the Tamil Nadu Cultural Department Teachers cum Employees Federation, which was formed to voice the grievance of the Teachers and Employees working in the Music College, to the Ministry. In the said representation, a request was also made to the second respondent to recall the transfer. Thereafter, the first respondent, by proceedings dated 13.8.2013, cancelled the transfer orders.
(d) Thereafter, after a period of three months, by the impugned order dated 12.11.2013, the first respondent transferred the petitioner from Madurai Music College to Chennai, posting the third respondent from Chennai to Madurai. Challenging the said order, the petitioner has filed the present writ petition in W.P.No.31074 of 2013, stating that the same is illegal, arbitrary, vindictive and mala fide and as such, it is liable to be dismissed.
6. Challenging the same impugned order, transferring the petitioner in W.P.No.31075 of 2013 from Cuddalore District Government Music School to Erode District Government Music School and transferring the petitioner in W.P.No.31076 of 2013 from Sivagangai District Government Music School to Karur District Government Music School, W.P.Nos.31075 and 31076 of 2013 have been filed.
7. Counter affidavits have been filed on behalf of respondents 1 and 2 and the common facts as could be seen from the said counter affidavits, in nutshell, are as follows:-
(a) The impugned transfer order was made only due to administrative reasons. The third respondent in W.P.No.31074 of 2013 K.Thiyagarajan has now joined in the Tamil Nadu Government Music College, Madurai on 13.11.2013. The then Commissioner has reported to the Government about the difficulties faced in running the College and the interference of the Tamil Nadu Cultural Department Teachers cum Employees Federation in the day to day administrative breeding indiscipline. In this context, the Government in G.O.Rt.No. 270, Tourism, Culture and Religious Endowment Department dated 11.8.2013 appointed one T.Udhayachandran, I.A.S., as Secretary to Government as Inquiry Authority to inquire into certain allegations. The said inquiry is now going on. The petitioner in W.P.No.31074 of 2013 has been working in Madurai Music College from the year 2007. Similarly, petitioner in W.P.No.31075 of 2013 has been transferred from Cuddalore District Government Music School to Erode District Government Music School and the petitioner in W.P.No.31076 of 2013 has been transferred from Sivagangai District Government Music School to Karur District Government Music School. All the three petitioners were working in the present station for a long time. The above transfer was made only on administrative reasons and the same is not illegal.
(b) The allegation of the petitioners that the impugned transfer has been made at the behest of the second respondent is not correct. The second respondent is not only the Principal, Tamil Nadu Government Music College, Chennai but also the Honorary Director appointed for ensuring overall improvement of the Tamil Nadu Government Music Colleges and therefore, in the interest of the administration, the second respondent is empowered to give suggestions wherever necessary.
(c) In fact, recently, 3 Principals, 2 Lecturers and 3 Teachers were transferred, which was necessitated due to administrative reasons and one Deputy Director was relieved and kept under compulsory wait. The petitioners in these writ petitions have not joined in the new place pursuant to the orders of the competent authority.
(d) The second respondent does not enjoy power to effect transfers and postings. Any suggestions / recommendations made by the second respondent, the competent authority examines the issue threadbare and acts independently after due application of mind in accordance with existing rules and regulations in force. The whole exercise was carried out of administrative necessity and convenience.
(e) The third respondent in W.P.No.31074 of 2013, who is a blind man, has worked in Chennai from 15.11.2007 to 12.11.2013 leaving his family which is away at Madurai. The element of compassion alone led to his transfer to Madurai. Therefore, the submission of the petitioners that the second respondent dictates as to whom should be transferred is totally denied. Thus, respondents 1 and 2 sought for the dismissal of the writ petitions.
8. (A) Mr.N.G.R.Prasad, learned counsel appearing for the petitioners in all the writ petitions submitted that in the year 2007, the petitioner in W.P.No.31074 of 2013 was transferred from Chennai to Madurai and the third respondent in that writ petition was transferred from Madurai to Chennai and it is an accommodative transfer at the request made by both of them. Accordingly, they joined their respective places and worked in their respective places since 2007. While so, in the year 2013, based on the representation made by the third respondent in the said writ petition, the second respondent, who is the Principal and Honorary Director of the Tamil Nadu Music College made a recommendation to the first respondent to transfer the third respondent from Chennai to Madurai and based on her recommendation, the impugned order of transfer has been passed transferring the petitioner in W.P.No.31074 of 2013 from Madurai Music College to Chennai. Now, it is the submission of the learned counsel appearing for the petitioners that since it is an accommodative transfer based on the request of the third respondent in W.P.No.31074 of 2013, the respondents ought to have obtained consent from the petitioner in that writ petition to transfer him from Madurai to Chennai.
(B) It is the further case of the learned counsel appearing for the petitioners that based on the representation given by the petitioners through the Tamil Nadu Cultural Department Teachers cum Employees Federation, requesting the first respondent to cancel the earlier transfer order dated 2.8.2013, the said order of transfer was cancelled by the first respondent on 13.8.2013. In the order of cancellation dated 13.8.2013, a reason was assigned for cancelling the transfer order to the effect that in the interest of the welfare of the college the first respondent is cancelling the order. When the same reason is available as on today, within a period of three months, again on 12.11.2013, in the middle of the academic year, the impugned order of transfer has been passed. Therefore, the impugned order of transfer is arbitrary, illegal, vindictive and the same is liable to be set aside. In this regard, learned counsel appearing for the petitioners relied upon a judgment reported in (1986) 4 Supreme Court Cases 131 B.Varadha Rao v. State of Karnataka and others, wherein it has been held that the power of transfer must be exercised honestly, bona fide and reasonably.
(C) Further, the learned counsel appearing for the petitioners submitted that since the writ petitioners A.Arumugam and P.Ayyanar opposed the earlier transfer order dated 2.8.2013 transferring the writ petitioner C.David from Madurai to Chennai, as the office bearers of Tamil Nadu Cultural Department Teachers cum Employees Federation, and hence, they were also transferred by the impugned order from their present stations. Hence, the impugned order is tainted with mala fide intention.
9. (A) Countering the submissions made by the learned counsel appearing for the petitioners, the learned Advocate General appearing for the official respondents submitted that by way of the impugned order, 7 persons including the petitioners, were transferred due to administrative reasons. Therefore, it is incorrect to state that the third respondent in W.P.No.31074 of 2013 has been transferred on his request to accommodate him at Madurai. The petitioners were working in their present posts for a long period. Since the second respondent is a Honorary Director appointed for ensuring overall improvement of the Tamil Nadu Music Colleges, in the interest of the administration, the second respondent is empowered to give suggestions wherever necessary. If any suggestion or recommendation is made by the second respondent, the competent authority, only after careful examination of the issues, acts independently after due application of mind in accordance with the existing rules and regulations in force. In the instant case, in the impugned transfer, it has been clearly stated that the transfer was made on administrative reasons. In fact, except the petitioners in these writ petitions, others have joined their new place pursuant to the orders of the competent authority. The first respondent examined the whole issue in its perspective and took a decision to transfer the the third respondent in W.P.No.31074 of 2013 to Madurai considering his blindness. Further, the learned Advocate General submitted that it is incorrect to state that the writ petitioners A.Arumugam and P.Ayyanar were transferred since they opposed the earlier transfer order dated 2.8.2013 transferring the writ petitioner C.David from Madurai to Chennai. On the other hand, the transfer is purely on administrative exigencies. Absolutely, there is no illegality or arbitrariness in the impugned order of transfer.
(B) In this regard, the learned Advocate General has relied upon the judgment reported in (2004) 11 Supreme Court Cases 402 State of U.P. and others v. Gobardhan Lal and submitted that unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision, or passed by an authority not competent to do so, the order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made.
(C) Learned Advocate General has also relied upon the judgment reported in (1993) 4 Supreme Court Cases 357 Union of India and others v. S.L.Abbas and submitted that the Court should not interfere with the transfer which was made on administrative reasons.
(D) Further, the learned Advocate General, by inviting the attention of this Court to the representation given by the Tamil Nadu Cultural Department Teachers cum Employees Federation dated 7.8.2013 to cancel the order of transfer dated 2.8.2013, submitted that even in the said representation, no allegation of mala fide or arbitrariness was made as against the official respondents. Thus, he has submitted that the impugned order of transfer has been made purely on administrative reasons and hence, all these writ petitions are liable to be dismissed.
10. I have heard the submissions made on either side and perused the materials available on record.
11. In view of the submissions made on either side, now the question that falls for consideration is, whether the petitioners in all the writ petitions have made out a case warranting interference by this Court in the impugned order of transfer.
12. According to the petitioners, in the year 2007, based on the representations given by the petitioner and the third respondent in W.P.No.31074 of 2013, they were mutually transferred and therefore, it was an accommodative transfer and they were working in their respective places only based on the accommodative transfer. Therefore, in the year 2013, when the official respondents transferred the third respondent in W.P.No.31074 of 2013 from Chennai to Madurai based on his request, they ought to have obtained consent from the petitioner in that writ petition to transfer him from Madurai to Chennai. Consequently, when they transferred the petitioner in W.P.No.31075 of 2013 from Cuddalore District Government Music School to Erode District Government Music School and transferred the petitioner in W.P.No.31076 of 2013 from Sivagangai District Government Music School to Karur District Government Music School, the official respondents ought to have obtained consent from them. Further, according to the petitioners, the writ petitioners A.Arumugam and P.Ayyanar were transferred vindictively, since they opposed the transfer of the writ petitioner C.David from Madurai to Chennai. But, on a perusal of the records, I find that the impugned order is not passed for an individual person. Totally, seven persons viz., 2 Principals, 2 Lecturers and 3 Teachers were transferred. Therefore, it is clear that the impugned order of transfer was made only due to administrative exigencies. In fact, except the present petitioners in the present writ petitions, other persons have joined in their new place pursuant to the orders passed by the competent authority. Since the earlier transfer which was made in the year 2007 was an accommodative transfer, it does not mean, even for the subsequent transfers, the official respondents have to obtain the consent of the petitioners herein. Further, I am of the opinion that the second respondent, who is the Principal, Tamil Nadu Government Music College, Chennai and also Honorary Director is empowered to make recommendations to transfer the Principals, Lecturers and Staff members for administrative reasons. Based on her representation, it is for the competent authority to consider the whole issue in proper perspective and to take a decision with regard to the said transfer. Therefore, absolutely I do not find any infirmity in the transfer order passed by the first respondent. Except a bald statement that the impugned transfer order was made with mala fide reasons, no tangible proof was produced before this Court to support the said allegation. In this regard, a reference could be placed in the judgment cited by the learned Advocate General, which was reported in (1993) 4 Supreme Court Cases 357 Union of India and others v. S.L.Abbas, wherein the Hon'ble Supreme Court has held as follows:-
" 10. The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the respondents' contention that if such an order is questioned in a court or the tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the court or the tribunal can quash the order of transfer, if any of the administrative instructions / guidelines are not followed, much less can it be characterised as mala fide for that reason. To reiterate, the order of transfer can be questioned in a court or tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions."
A reading of the dictum laid down in the above judgment would go to show that the transfer can be questioned only when it is passed with mala fide intention or where it is in violation of the statutory provisions. As observed above, absolutely I do not find any infirmity or violation of any statutory provision in the impugned order of transfer. When the transfer is made for administrative reasons, unless it is proved that the transfer order is made in violation of any statutory rules, this Court cannot interfere with the said order. In the present writ petitions, except a bald statement that the impugned order was passed with mala fide reasons, no material has been produced to support the same.
13. For all the reasons stated above, I am of the opinion that there is no merit in these writ petitions and the same are liable to be dismissed.
14. In fine, all the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
3 .01.2014 Index:Yes/No Internet:Yes/No sbi To
1.The Principal Secretary / Commissioner, Department of Art & Culture, 2nd Floor, Tamilnadu Development Complex, Halls Road, Egmore, Chennai-8.
R.SUBBIAH, J sbi Pre-delivery common order in W.P.Nos.31074 to 31076 of 2013 DATED: 3 .01.2014